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18- OFFICE of the CLERK No Supreme Court, U.S. FILED APR 2 8 2019 18- OFFICE OF THE CLERK No. In The Supreme Couvt o 1 tlj e Uniteb States Nasser Ghelichkhani, Petitioner v. UNITED STATES OF AMERICA:>■ Respondent. On Writ of Certiorari to the U.S. Court of App e a 1 s f o r t he Eleventh Circuit PETITION FOR A WRIT OF CERTIORARI N. Ghelichkhani*, 310 N. Olive Ave. West Palm Beach, FI 33401 *Counsel of record. Pro, Se. [email protected] Date* QUESTION PRESENTED As cited in Class v. United States, 583 U.S.__ (2018), In Blacklegged v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975), this Court held that where a defendant pleads guilty, but then asserts a right that would have prevented the government from prosecuting him at all— such as the right not to be vindictively prosecuted or to be put into double jeopardy—the assertion of that right is not inherently waived or foreclosed by the guilty plea. In conclusion of Class, this court held that- “Conviction on such plea is constitutionally invalid”. Similar to class, convictions obtained on a charge that does not state an offense have always been dismissed on appeal, or such charges have been dismissed after their filling or during prosecution. See; Smiley v. United States, 181 F.2d 505 (9th Cir. 1950) where court stated charging with statement of born in New York does not amount to claim to US citizenship. This could be resolved in a motion filed pre trial. See Fed.R.Crim.P. 12(b)(2) Rights enumerated in the U.S. Constitution are recognized as "fundamental" by the U.S. Supreme Court. In United States v. Morgan, 346 U.S. 502 (1954), this court held the writ of Coram nobis may be issued to correct a constitutional violation, id. at 512-513. 11 Ever since Morgan, Circuit courts are in conflict mainly with 11th circuit, on what standard to use in detecting and correcting a manifest injustice, in last remedy available “Writ of Coram Nobis”. In contrast to several decisions of this court. See! U.S v. Peter, 310 F.3d 709, 711, “A district court's denial ofcoram nobis relief is reviewed for abuse of discretion, keeping in wind that “an error ofla w is an abuse of discretion per se” See, U. S. v. CHAN, .16-55469 (9th Circuit, 2018), “ We review de novoa district court's denial of a petition for a writ of error coram nobis’’. And See, Koon, 518 U.S. at 100("The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions”). And See, Anderson, 470 U.S. at 573-74 The reviewing court may not substitute its view for that of the district court. Question represented; l-Whether a conviction, with tremendous adverse consequences, is constitutionally valid, when it is obtained through a plea (that does not waive appealing the conviction), on a charge that does not state an offense? m• ‘ * 2-Whether after loss of immigration status as result of conviction on above guilty plea, being informed by immigration in 2017 that immigration supervised release will stop* re arrest and further prosecution for purpose of deportation will occur, based on policy change of a new president, previously unknown, is sound reason to trigger filling of last resort relief, “writ of Coram Nobis”, then and not earlier? 3'Whether prosecuting on and criminalizing, a charge that does not state an offense, plus additional constitutional rights and due process violations, qualify as fundamental errors for purpose of relief on writ of Coram nobis? iv TABLE OF CONTENTS TABLE OF CONTENTS iv QUESTION PRESENTED 1 TABLE OF AUTHORITIES viii OPINIONS BELOW 1 JURISDICTION 1 CONSTITUTIONAL AND STATUTORY I PROVISIONS INVOLVED 1 INTRODUCTION 2 STATEMENT OF THE CASE A. Background Facts. 5 -Late Indictment. 6 -Charged indictment does not equate to the offence in Charged Statute 28 USC 911 6 Search and seizure before Warrant 6 Ineffective Counsel 7 Vindictive Prosecution 7 B. Petitioner Attacks The Constitutionality of proceedings 7 Direct appellate counsel, only appeals the sentence Which had a waiver 7 C. Plea of Guilty, 8 V D- Withdrawal of plea is denied, prosecutor misleads the court, That conviction will not affect immigration Status, 9 E-Sentencing a) Prosecutor tells court to discard all tile times served, and Impose Fresh Maximum, Sentence. She reasons! by probation court can get More custody time, while without it has to release petitioner. 9 F* Petitioner is sentenced under 18 USC 3561, max. 5 years Probation, which was expressly precluded in charged statue 28 USC 911. 9 G-First probation revocation 9 H- Second probation revocation 9 1-2255 motion 10 JTn denial of habeas corpus judge does not recognise its own imposed custody 10 K- Writ of certiorari, denied 10 L- Rehearing on certiorari, returned untimely, in contrast to Prison mail box Rule. 10 N-Request for transcripts denied. 10 M-Pending adjustment of immigration status is denied due to The Conviction on plea, in 2012. 11 O-Ice supervision, 2017 11 P- Writ of Coram nobis filed, was denied. 11 vi Q-Appeal Brief Government Concedes charge does not state an offense. 11 R-11th circuit denies appeal, applying abuse of discretion standard 11 S* Rehearing Denied 11 Argument 12 REASONS FOR GRANTING THE PETITION. 18-21 I-THE CIRCUIT COURTS ARE DEVIDED ON WHAT STANDARD OF REVIEW SHOULD BE USED IN REVIEWING DECISION OF LOWER COURT IN DENIAL OF WRIT OF CORAM NOBIS. * 11TH CIRCUIT’S DECISION IS AGAINST OTHER CIRCUITS ON WHAT IS A FUNDEMENTAL ERROR THAT CAN MAKE A PROCEEDING IRREGULAR OR INVALID, OR WHAT IS A SOUND REASON TO FILE FOR RELIEF UNDER WRIT OF CORAM NOBIS. - lira CIRCUIT‘S DECISION, IS AGAINST OTHER CIRCUITS, TO GIVE DISCRETION, AND ASSUME JURISDICTION TO LOWER DISTRICT COURT TO DENY THE LAST RESORT REMEDY AVTLABLE “WRIT OF CORAM NOBIS”, WITHOUT CHECKING TO SEE IF CORRECT LAW WAS APPLIED, - 11th CIRCUIT’S DECISION IS AGAINST OTHER CIRCUITS, WHEN IT REFUSES TO REVIEW QUESTIONS OF LAW SUCH AS JURISDICTION, EVEN ON A CHARGE DOES NOT STATE AN OFFENSE. vn -11TH CIRCUIT HAS DECIDED AN ISSUE , AGAINST ADVICE OF THIS COURT ON A CHARGE THAT DOES NOT STATE AN OFFENSE, EVEN AFTER GOVERNMENT CONFIRMED IT IN ITS BRIEF , THEREFOR CONVICTION SHOULD NOT STAND. -lira CIRCUIT HAS MADE A DECISION THAT IS AGAINST OPINION OF THIS COURT, IN REFUSING TO GIVE A CHANCE TO SHOW FEDERAL CONVICTION WAS WRONGLY OBTAINED II THIS CASE IS WORTHY OF THIS COURTS REVIEW A-This issue is recurring 23 B-This case is an excellent vehicle, to 24 III- The 11th circuit court of appeal decision is wrong 24 CONCLUSION 25 Certificate of compliance and service. 26 i. » vm TABLE OF AUTHORITIES CASES Anderson v. city , 470 U.S. 564 11 Baldayaque, 338 F.3d 145 at 151 (2nd, 2003). 16 Blacklegged v. Perry, 417 U.S. 21 (1974), i Brady v. United States, 397 U.S. 742, 748 (1970). 23 Castillo v. Allegro 603 F. App’x. 913, 915 (l1th Cir. 2015) 14 Reno v. Catholic Social Servs. 509 U.S. 43 (1993). 5; Class v. United States, 583 U.S. i,2,5,22,24 Cleveland v. U.S., 531 U.S 12 2,13, 18 Halberd v, Michigan 545 US 605, 621-22 (2005) 4, 24 In re Winship, 397 U.S. 358 3 Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) 15 Koon v. US, 518 U.S. 81 int, ii, 16 Lafler v. Cooper, 132 S. Ct. 1376 (2012), 15 Lujan -Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). 17 Matter of Roldan, 22 1. & N. Dec. 486 (BIA 1999) en banc, 17 IX McDonnell v. U.S. 136 S. Ct.2355 at 2368 15 Menna v. New York, 423 U.S. 61 (1975) i Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012). 2 Padilla v. Kentucky, 559 U.S. 356 (2010), 15 Smiley v. United States, 181 F.2d 505 1950) 1,3,5,12,15,24 U. S. v. CHAN, .16-55469 (9th Circuit, 2018) ii U.S. v. Edrinaton. 726 F.2d at 1031 12 U.S. V. Granderson 511 U.S. 39. 18 United States v. Harper. 901 F. 2d 471, 472 (5th Cir. 1990) 12 U.S. v. KWAN No. 03-503lo.(9th Cir. 2005). 16, 22 U.S. v. Legros, 529 F.3d 470, 473 (2d Cir. 2008) 4 U. S. v. Mayer, 235 U.S. 55 21,24 U.S. v. Meacham. 626 F.2d 503 (5th Cir. 1980 12, U.S. V. Morgan 346 U.S. 502 (1954) intro, i,5, 11,14,15,18, 21,22,24 U.S v. Peter, 310 F.3d 709 n U. S. v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) 16 United States v. Stevens, 559 U.S. 460, 480 (2010). 23 .X Tvuiillo 310 p.3rd 594 (2013) 16 WaJeyv. Johnston, 316_U.S._101 15 Statutes 18 USC 911 1, 6,13,18 28 U.S.C. § 1291 16 18 USC 3561(a)(2). 17 18 USC 2255 12 § 212(a)(2) (A)(i)(I) of INA 17 OTHER AUTHORITIES Lindsey Devers, B.O.J. Plea and charge bargaining. 23 Fed. R. Crim P.ll 23 Fed. R. Crim P. 11(a)(2). 23 Fed.R.Crim.P. 12(b)(2)) ii,12 Fed.R.Crim.P 12(b)(6) 14 Constitutional amendments 4th, 5th, 6th, 8th, and 14th 24 1 PETITION FOR A WRIT OF CERTIORARI Petitioner Nasser Ghelichkhani respectfully petitions this Court for a writ of certiorari to review the judgment of the United States Court of Appeals 11th circuit, for the Southern District of Florida.
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